The importance of hernandez v. mesa
By Abdiel Razo, Communications Associate
While the future of DACA got the most media coverage on November 12th, the U.S. Supreme Court heard another case no less important. In Hernández v. Mesa the question put forth to the Court is whether a U.S. Border Patrol agent can be sued for monetary compensation for fatally shooting a Mexican teenager who was on the Mexican-side of the U.S.-Mexico border in violation of the Fourth Amendment’s protection against unreasonable seizures.
In 2010, on a cement culvert on the border between the United States and Mexico, Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was playing with friends between El Paso, Texas, and Ciudad Juárez, Mexico. Border Patrol agent Jesus Mesa arrived and detained one of Hernández’s friends, while Hernández fled to the Mexican side of the border. Mesa fired from U.S. territory at least two shots across the border at Hernández, who was struck in the face and died instantly.
Hernández’s family sued Agent Mesa for damages, arguing that his use of deadly force violated the Fourth Amendment. Agent Mesa countered that the Fourth Amendment does not apply because Hernández was standing in Mexican territory at the time of the shooting. The case was first heard by the Supreme Court in 2017, but the Justices sent the case back to the lower court for further review. The Fifth Circuit Court, which re-considered the case, held that the Hernández family could not sue. The Hernández family once again petitioned the Supreme Court, which agreed to hear the case again in May 2019. Earlier this month, the Court heard oral arguments for the case, and judging by the precedents set by the Court in similar cases, it seems that the conservative majority will lean in favor towards Mesa.
This case is about the accountability of arbitrary actions perpetrated by the federal government and its agencies. Quite simply, the Supreme Court could remove all constitutional limits on border agents and their ability to kill. In a heavily militarized and chaotic border, thousands of armed agents could act with impunity without the fear of consequences. This was something raised by Justice Sonia Sotomayor who pointed out that "CBP demands immunity for all agents who use lethal force, because it does not believe it should be accountable to anyone." She cited an amicus brief that was filed by former high ranking CBP officials informing the Court of high levels of corruption, misconduct, and excessive force in the agency.
Oral arguments continued to show how easily border issues are muddied as national security concerns. Rudolph Ortega, who is representing Mesa, has argued that this case implicates factors of "national security" and "foreign policy" as means to argue against holding Mesa accountable. Justice Ruth Bader Ginsburg questioned this faulty logic saying “here, we have a rogue officer acting in violation of the agency’s own instruction, using excessive force to kill a child at play, how does that call into question any foreign policy or national security policy?”
If Mesa is not held to account, it could make the deaths of foreign nationals at the border and in detention centers not only a continuing occurrence but also impervious to the rule of law.
